The Joy of Public Holidays?
29 November 2021
- Most employees in Australia are covered by a Modern Award or Enterprise Agreement. If you are not sure which one applies to your business, contact Impact HR and we can help. Being covered by a Modern Award or Enterprise Agreement means that any employee who performs work on a public holiday must be paid the appropriate penalty rate, as set out in the agreement. As a result it is important to refer to the relevant Modern Award or Enterprise Agreement to determine which penalties and other compensation for working on a public holiday apply to your team.
- Award or Agreement free employees may agree with their employer to substitute an alternate day off.
- Employees who ordinarily work on a day which is a public holiday and are absent from work due to the public holiday (including because a business is required to close due to trading restrictions), are entitled to receive their base rate of pay for the ordinary hours they would have worked on that day.
- An employee whose ordinary hours of work would not include the day on which a public holiday occurs, are not entitled to payment for that day, unless such an entitlement exists in the relevant Modern Award or enterprise agreement.
- If an employee has taken Annual Leave on either side of the public holiday, the public holiday is not counted in the days of Annual Leave. For payroll purposes, the public holiday is deducted from the total days and the balance is deducted from the Annual Leave balance.
Asking employees to work on Public Holidays
- As confusing as this is when your business is required to operate on a Public Holiday, the legislation states that employees are entitled to be absent from work, including a day they would ordinarily work, on any day or part-day which is a public holiday
- As an employer you may request employees to work where such a request is reasonable. So what does reasonable look like in this somewhat confusing legislation? In determining whether the request for an employee to work, or an employee’s refusal to work, is reasonable, the Fair Work Ombudsman will look at the following factors:
a) The nature of the employer’s workplace or enterprise (including its operational requirements), and the nature of the work performed by the employee
b) The employee’s personal circumstances, including family responsibilities
c) Whether the employee could reasonably expect that the employer might request them to work on the public holiday
d) Whether the employee is entitled to receive overtime payments, penalty rates or other compensation for work on the public holiday
e) The type of employment of the employee (for example, whether full-time, part-time, casual or shift work)
f) The amount of notice in advance of the public holiday given by the employer when making the request
g) In relation to the refusal of a request – the amount of notice in advance of the public holiday given by the employee when refusing the request. As a result, we always recommend that businesses inform new employees at the start of their employment if they are likely to be requested to work on public holiday
- You should allow for sufficient prior lead time, to notify your employee of your work request during a public holiday. If you are opening over the up-coming Public Holidays, now is the time to ask and confirm employee ability to attend work.
What days are Public Holidays?
The following are declared public holidays in Australia:
- 1 January (New Year’s Day)
- 26 January (Australia Day)
- Good Friday
- Easter Monday
- 25 April (Anzac Day)
- Queen’s birthday holiday (on the day on which it is celebrated in a State or Territory or a region of a State or Territory)
- 25 December (Christmas Day)
- 26 December (Boxing Day)
- Any other day, or part-day, declared or prescribed by a law of a State or Territory, or a region of the State or Territory, as a public holiday
Can a day which is a Public Holiday be substituted for another day instead?
- Some States or Territories may prescribe for the substitution of certain public holidays.
- Employees and employers may also agree to substitute a declared public holiday for an alternate day if this is permitted within a Modern Award or enterprise agreement. For employers and employees covered by a Modern Award or enterprise agreement, these should be referred to for any specific provisions relating to the substitution of public holidays.
What if an employee calls in sick the day before or after a Public Holiday?
- Check your leave policy first. If you don’t have one, contact Impact HR for assistance.
- If you have documented the requirement to provide a medical certificate for any personal leave (sick leave) the day before or after a public holiday, you can require the medical certificate in order to process the personal leave. If the employee is unable to do this, you can determine whether you wish to process the leave as Annual or Unpaid Leave. If possible, do this in conjunction with the employee so they know what is happening and are less likely to take unauthorised leave in the future.
- If the employee provides you with a medical certificate, even if you doubt its authenticity, we don’t recommend you treat it as annual or unpaid leave. It is better to treat it as genuine personal leave but address the issue with the employee. This will make it clear that if a pattern of personal leave before or after a public holiday you will be able to identify it and address it in the future.
So with this helpful information, you are ready to proceed with your plan to have a successful Public Holiday. Whether that means one of the busiest days of the year or a smooth transition into a short week you will have ticked all the right boxes and be ready for the joys of Public Holidays. If you would like further information about Public Holidays, call us now on 1300 474 672, or send us an email. We have the expertise to support you.
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